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8
Court of Criminal Appeal 26 September 2008

Qoro v R

[2008] NSWCCA 220

Sexual offences
CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT IN COMPANY NO ERROR DEMONSTRATED APPEAL AGAINST CONVICTION DISMISSED NO ERROR ESTABLISHED APPEAL AGAINST SENTENCE DISMISSED

Citation: Qoro v R [2008] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 26 September 2008
Judge(s): Giles JA, Johnson J, Hall J

Background

The appellant was convicted in the Sydney District Court of aggravated sexual assault in company under s 61JA(1) of the Crimes Act 1900, following a trial before Judge Berman SC and a jury. The offence related to events on 24 November 2005 at a terrace house in Redfern, where the complainant, a 20-year-old woman, was detained and sexually assaulted by multiple men. The Crown case was that the appellant was among the perpetrators, identified by the complainant as the man who forced her to perform oral sex in a separate room after she was moved from the main bedroom where most assaults had occurred.

The appellant denied being present and relied on alibi evidence. His defence challenged the reliability of the complainant's identification, pointing to poor lighting, the nature of the activity, and the traumatic circumstances of her ordeal.

On 24 April 2007, Judge Berman SC sentenced the appellant to 14 years' imprisonment, comprising a non-parole period of 10 years commencing 4 January 2006, with a balance of term of four years.

The Court of Criminal Appeal was asked to resolve the following questions:

  • Whether the trial miscarried because the trial judge refused to discharge the jury (Ground 1)
  • Whether the trial judge erred in failing to withdraw picture identification evidence from the jury (Ground 2)
  • Whether unfair prejudice arose because the Crown opened its case on a different basis than the one ultimately left to the jury (Ground 3, added by leave)
  • Whether the sentencing judge erred in finding no connection between the appellant's psychiatric condition and his moral culpability (Ground 4)
  • Whether the sentencing judge failed to give adequate weight to the appellant's psychiatric condition (Ground 5)

Decision

Conviction grounds: The Court found no error in the trial judge's refusal to discharge the jury. On Ground 3, the Court considered the submission that the Crown had opened on a different basis than was ultimately left to the jury, but found no unfair prejudice resulted from that circumstance. On the identification evidence ground, the Court concluded the trial judge was not required to withdraw the picture identification evidence from the jury, and no error was demonstrated in the decision to leave it before them.

Sentence grounds: Ground 4 challenged the sentencing judge's factual finding that no connection had been established between the appellant's psychiatric condition and his commission of the offence. The Court of Criminal Appeal noted that findings of fact by a sentencing judge are binding on appeal unless shown to be unavailable on the evidence or affected by House v The King error. There was no direct evidence of a causal link between the appellant's mental state and the offence, and the sentencing judge was not obliged to draw an inference favourable to the appellant. No error was established.

On Ground 5, the Court found that the sentencing judge had, in fact, given careful consideration to the psychiatric and psychological evidence, taking it into account in the appellant's favour when fixing the non-parole period and when identifying special circumstances. The submission that insufficient weight was given to that material was rejected.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • No error was established in the trial judge's refusal to discharge the jury or in the decision to leave picture identification evidence before the jury in an aggravated sexual assault trial.
  • Where the Crown's opening address differs from the basis ultimately left to the jury, this does not automatically constitute a miscarriage of justice; the appellant must demonstrate actual unfair prejudice.
  • A sentencing court's factual finding that no causal connection existed between a psychiatric condition and an offence is binding on appeal unless it was not open on the evidence or involves House v The King error.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that where a sentencing judge has genuinely engaged with psychiatric and psychological evidence and applied it in the offender's favour, a ground of inadequate weight will not readily succeed.
  • A practical difficulty arises for an appellant who denied committing the offence but simultaneously sought a sentencing reduction on the basis that a mental condition contributed to it; the sentencing judge was entitled to consider that tension when assessing the submission.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61JA(1), 61J(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Maric v The Queen (1978) 52 ALJR 631
- Crofts v The Queen [1996] 186 CLR 427
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Blick (2000) 111 A Crim R 326
- R v Khouzame [2000] NSWCCA 505
- R v Tugaga (1994) 74 A Crim R 190
- R v Israil [2002] NSWCCA 255
- R v Hemsley [2004] NSWCCA 228
- R v Howard (2005) 152 A Crim R 7
- Robinson v R (2006) 162 A Crim R 88
- R v Shamouil (2006) 66 NSWLR 228
- R v Hamid (2006) 164 A Crim R 179
- R v Sood [2007] NSWCCA 214
- Smale v R [2007] NSWCCA 328
- Sieders v R [2008] NSWCCA 187
- R v Merritt (2004) 59 NSWLR 557
- R v Engert (1995) 84 A Crim R 67